20 Organised crime
| (a)
(26319)
6582/05
COM(05) 6
(b)
(27436)
8496/06
—
|
Draft Council Framework Decision on the fight against organised crime
Amended draft Council Framework Decision on the fight against organised crime
|
| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
|
| Deposited in Parliament | (b) 21 April 2006
|
| Department | Home Office |
| Basis of consideration | (b) EM of 16 May 2006
|
| Previous Committee Report | (a) HC 34-iv (2005-06), para 9 (20 July 2005)
(b) None
|
| To be discussed in Council | 1 - 2 June 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | (Both) Cleared
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Background
20.1 Organised crime has long been the subject of co-operation
at EU and international level. In 1998 the Council adopted a Joint
Action on participation in a criminal organisation (1998/733/JHA),[61]
and in 2000 the United Nations adopted a Convention against Transnational
Organised Crime (UNTOC).
20.2 Under the Joint Action, Member States were
given the right to make criminal either an active participation
in an organisation's criminal activities or the making of an agreement
that an activity should be pursued. Similarly, Article 5(1)(a)
of UNTOC requires States which are a party to the Convention to
treat as criminal either (i) an agreement to commit a serious
crime, or (ii) conduct by a person who, with knowledge of either
the aim and general criminal activity of an organised criminal
group or its intention to commit the relevant crimes, takes an
active part in the group's criminal activities or in its other
activities in the knowledge that his participation will contribute
to achievement of the group's criminal aims.
Previous scrutiny of document (a)
20.3 Document (a) is a proposal for a Framework Decision
to replace the provisions of the 1998 Joint Action. It makes provision
for specific criminal offences of directing, and of active participation
in, a criminal organisation and prescribes new offences relating
to criminal organisations.
20.4 When the previous Committee considered the proposal
in April 2005, it noted that Article 2 of the draft Framework
Decision would require active participation to be made criminal,
with no provision for an alternative means of satisfying the requirements
of the Framework Decision by referring to an agreement to commit
a serious crime. Our predecessors saw no useful purpose in this
departure from the UN Convention. The Framework Decision did not
appear to allow for the conduct to be dealt with by the existing
law on inchoate crimes such as conspiracy, and thus did not appear
to respect the differences between the traditions and legal systems
of the Member States.[62]
20.5 The previous Committee also believed that the
sentencing provisions of Article 3(2) of document (a) might interfere
with judicial discretion since they appeared to require that offences
committed in the context of criminal organisations incurred longer
periods of imprisonment.
20.6 The then Parliamentary Under-Secretary of State
at the Home Office (Paul Goggins) wrote to us in June 2005 to
say that the Government preferred the approach reflected in Article
5 of UNTOC and was still considering, therefore, whether it could
accept the proposal in Article 2 of document (a). As to judicial
discretion in sentencing, the Government shared the previous Committee's
concern about the drafting of Article 3(2) and would seek appropriate
amendments.
20.7 When we considered the Minister's comments,
we could see no benefit in preventing common law jurisdictions
from relying on their existing law on conspiracy and incitement.[63]
We supported the Government's endeavours to secure more appropriate
wording of the provisions relating to sentencing.
Document (b)
20.8 Document (b) is an amended draft of the Framework
Decision. It was considered by the Council on 28 April. Subject
to the Parliamentary reserves of the UK and several other Member
States, there was a consensus in favour of the amended draft.
20.9 Two aspects of the amended draft are particularly
notable:
- the new Article 2(b) would
enable common law States to deal with involvement in a criminal
organisation under the law of conspiracy and reflects the approach
adopted in UNTOC; and
- the revised wording of Article 3 would not restrict
judicial discretion in sentencing in the way that was objectionable
in the previous draft of the provision.
The Government's view
20.10 The Parliamentary Under-Secretary of State
at the Home Office (Mr Vernon Coaker) tells us that the Government
believes that Articles 1, 2 and 3 of the amended draft of the
Framework Decision now provide a proportionate response to the
need to ensure that Member States' laws are adequate to provide
an effective response to organised crime. The Government is content
with the other provisions of document (b).
Conclusion
20.11 We welcome the amendments to Articles 2
and 3 that have been incorporated in the amended draft of the
Framework Decision. They remedy what we and our predecessors regarded
as the defects in the previous draft. There are no other issues
that we need raise with the Minister. We are content, therefore,
to clear document (b) from scrutiny. We also clear document (a)
because it has been superseded by the revised text.
61 OJ No. L351 of 29.12.1998, p.1. Back
62
See HC 38-xv (2004-05), para 7 (6 April 2005). Back
63
See headnote. Back
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